2005 PLP 277 (YLR)

The brief facts of the case as recorded by Honourable Supreme Court which contain the summary of the proceedings from filing of the suit till disposal of this revision by this Court on 30-6-1998 read as under:-- "Briefly facts of the case are that the petitioner filed a suit against respondents Nos.1 and 2 before Qazi, Sarawan, at Mastung for declaration of his title to and conformation of his possession over the disputed land and also seeking perpetual injunction restraining the defendants respondents from interfering in the possession of the disputed land. The claim of the petitioner is that the disputed property was an ancestral property which was partitioned amongst the petitioner and his brothers during the life time of their father. In 1993, Patwari Halqa informed them that the property situated on the southern side belonged to the Government of Balochistan and that the Lathbandi carried out therein by them was illegal. On this information the petitioner came to know from the Revenue Record that it has been illegally entered in the record of rights as the property of the Government of Balochistan respondent No. 1, notwithstanding the fact that the petitioners were in cultivating possession of the same. The respondents filed their written statement. On 17-5-1994 since none from the respondents side appeared, therefore, they were placed ex parte. Ex parte evidence was thereafter adduced and the learned trial Court on the basis, decreed the suit ex parte in favour of the petitioner vide judgment dated 25-5-1994. Against the said judgment, an appeal was taken by the official respondents to the Majlis-e-Shoora, Kalat, at Mastung. It was, however, accepted and the case was remanded to the trial Court for affording an opportunity of adducing evidence by the respondents and then deciding the case afresh. During the pendency of those post remand proceedings, an application under Order I, rule 10, C.P.C. was filed by the private respondent for impleading them as party. Notice of this application was issued to the petitioner and after hearing the arguments, the learned trial Court dismissed the application of the private respondents on 21-11-1995. The said order, however, remained unchallenged and attained finality. Ultimately, the suit was once again decreed on 4-12-1995. An appeal there against under section 4 of the Dastoorul Amal Diwani, Kalat, before Majlis-e-Shoora, at Mastung, was filed. During the pendency of this appeal, another application dated 27-3-1996 was filed by the private respondents for impleading them as party and further challenging the validity of the judgment and the decree so passed by the trial Court. On 5-12-1996, an application of the private respondents for their impleadment as party of the suit was dismissed by the Majlis-e- Shoora whereas the appeal filed by the official respondents was similarly dismissed on 5-12-1996 upholding the judgment and decree of the trial Court. This last mentioned judgment and decree was not challenged by the official respondents in revision before the High Court. However, the private respondents who had been twice disallowed to be impleaded as party once again challenged the judgment and decree of the trial Court dated 4-12-1995 by filing an appeal before the Majlis-e-Shoora on 30-12-1996. The instance of the petitioner before the Majlis-e -Shoora in appeal was that it was not maintainable, lack of locus standi of the private respondents was specifically taken up before the Majlis-e-Shoora and further that the judgment and decree of the trial Court had already been upheld by the Majlis-e-Shoora, therefore, interference cannot be made and that the respondents could only approach the High Court by means of filing revision petition which was filed as No.234 of 1997 before the High Court. By the judgment dated 30-6-1998, the revision petition was dismissed upholding the judgment and decree of the learned Appellate Court. Hence this petition." Before, I proceed with the matter to dispose it off as per direction of Honourable Supreme Court, it would be appropriate to add that this revision petition has been filed against the judgment and decree dated 4-8-1987 passed by Majlis-e -Shoora on the appeal filed by the private respondents on 30-12-1995 against the judgment and decree dated 4-12-1995 passed by Qazi Sarawan at Mastung which has been set aside and the suit of the petitioner has been remanded to the trial Court for its disposal afresh with following observations:-- Mr. Ayaz Zahoor the learned counsel for the petitioner without touching the merits of the case raised twofold objection on the maintainability of the appeal filed by the private respondents contending that after dismissal of the application under Order 1, rule 10, C.P.C. filed by the private respondents twice i.e. before trial Court as well as before Appellate Court without challenging the order of dismissal of their application could not file the appeal and that Majlis-e-Shoora after upholding the judgment and decree while dismissing the appeal filed by the official respondents on 5-12-1996 neither could entertain the second appeal on 30-12-1996 nor could review its earlier decision. Mr. K. N. Kohli the learned counsel for the private respondents on the other hand argued that none of the inferior Courts declared the private respondents as unnecessarily party therefore, their right of appeal cannot be curtailed only on the ground that their application under Order I, rule 10, has been dismissed whereas filing of appeal is a right extended to an aggrieved person by law. He further argued that the appeal of the official respondents was dismissed only to their extent which cannot operate as a bar to dispose of the appeal of private respondents. Mr. Ghulam Mustafa the learned Addl. A.-G. supporting the counsel for private respondents came up with plea that the very suit filed by the petitioner was defective as the necessary parties to the suit were intentionally keep out of the proceeding. The recorded owner of the suit property is Government of Balochistan which makes the M.B.R. necessary party, this legal lapse on the part of the petitioner did not receive any attention at the time of dispose of suit and appeal of official respondents, hence the Majlis-e-Shoora in its judgment 4-8-1997 has rightly taken note of the said aspect of the case and remanded the suit for its disposal afresh after making suitable amendment so as to remove the defects. The respective submissions made by the parties considered, record of the case perused. The petitioner filed the suit for declaration and permanent injunction against the official respondents. Without going into the illegalities and irregularities committed by the trial Court dismissing the suit and its restoration without any application and allowing amendment without affording of opportunity to the official respondents, the record reflects that an ex parte decree was passed in favour of the petitioner on 29-5-1994. Application for setting aside of the same was filed by the official respondents which was dismissed, simultaneously an application under Order 1, rule 10, C.P.C. was filed by one Abdul Razaq on 7-7-1994, however, the record is silent with regard to its disposal. The official respondents challenged the ex parte judgment and decree dated 7-7-1994 which was set aside and the suit was remanded to the trial Court for its disposal after affording opportunity of hearing to the official respondents. After remand the private respondents filed application under Order 1, rule 10, C.P.C. on 16-11-1995 which was dismissed by means of order dated 21-11-1995 which reads as under:-- Subsequent to the dismissal of the application, the suit of the petitioner was decreed on 4-12-1995. The official respondents filed appeal while the private respondents filed application under sections 24 and 96 of Dastoorul Amal Dewani Kalat for impleading them as respondents in the appeal. To have the true account of the plea of the private respondents the contents of the application are reproduced as follows:-- The application was dismissed vide order dated 5-12-1996 with following observations:-- In pursuance of the above order the private respondents filed the appeal which was allowed vide judgment dated 4-8-1997 in the aforementioned terms. The application filed by the private respondents show that they not only prayed for their impleadment as respondent in the appeal but challenged the judgment and decree dated 4-12-1995. The learned Majlis-e- Shoora in its order dated 5-12-1996 did not reject the plea of the private respondents that they are not necessary party, the order reflects that the plea of private respondents was impliedly accepted and they were advised either to file proper appeal or in alternate they may file civil suit. The private respondents acting upon the advice of Majlis-e-Shoora filed the appeal. The petitioners did not challenge the order dated 5-12-1996 allowing the private respondents to file appeal. Besides there can be no cavil to the legal position that a person who was not party to the suit can also appeal against the decree by which he is adversely affected and is permitted by the Appellate Court to file an appeal. In the present case the Appellate Court vide order dated 5-12-1996 permitted the private respondents to do so and said order has not been objected to by the petitioners, while dismissal of application under Order I, rule 10, C.P.C. by the trial Court would not curtail the right of appeal allowed to the private respondents by law. This meets the objection of the appellants counsel with regard to maintainability of the appeal filed by the private respondents. Adverting to the second objection with regard to entertaining of second appeal after dismissal of the appeal filed by the official respondents, though this objection is met with to some extent in the above para, however, as the second appeal was filed by the private respondents with the leave of the Court granted to them vide order dated 5-12-1996 which also reflects that the private respondents were considered to be necessary party in the proceedings. As already stated the said order has not been challenged, therefore, filing of appeal by the private respondents cannot be objected at this stage. The first appeal filed by the official respondents was disposed off only to their extent and the rights of private respondents were not settled. The judgment dated 4-8-1997 which has been impugned by means of this petition, reflects that learned Majlis-e- Shoora after due application of mind and. going through the record of the case found that the matter cannot be finally settled without impleading the private respondents as party. The observations recorded in said regard are reproduced as follows:-- The learned counsel for the petitioners when confronted with the above observations could not dispute any of the facts so mentioned by the Majlis-e-Shoora. Having regard to the facts and circumstances referred to hereinabove, I find myself to be in agreement with the finding and conclusion so drawn by learned Majlis-e-Shoora, whereby the suit has been remanded to the trial Court for its adjudication afresh. At this juncture it would not be out of place to mention that the recorded owner of the property in dispute is Provincial Government. The petitioner made Collector and D. C. as defendants. Before promulgation of Balochistan Local Government Ordinance, 2000 both the offices vested in one and same functionary, however, after promulgation of the Balochistan Local Government Ordinance the office of D.C. no more exists, in any case neither Collector nor D.C. can be deemed to be proper party when the owner is Provincial Government which was to be independently made party. For such view I have taken support of the judgment 1999 CLC 252 passed by his Lordship Justice Raja Fayyaz Ahmed in a case having somewhat similar facts and circumstances. The observations so made on the subject read as under:-- "Before dilating upon the other contentions of the parties counsel it would be expedient and is deemed essential to resolve the contention of the petitioner's counsel, if, the suits filed by the plaintiffs were competently instituted against the petitioners, without impleading the Provincial Government as defendant; though the disputed entries of Revenue Record sought to be cancelled, are appearing in the name of the Provincial Government. It is an admitted feature of these cases that the disputed entries are existing in the name of the Provincial Government in the relevant Revenue Records since 1958-59 when the Revenue Settlement of the area was carried into effect and the Deputy Commissioner i.e. Petitioner No.1 was shown to be in possession of suit lands on behalf of the owner/Provincial Government in the relevant columns of such records. The Provincial Government as per Revenue Record in dispute lost its title to the property in question, without any representation for want of being impleaded as defendant in the suits. In view of the averments contained in the plaints and the suit property existing in the name of the Provincial Government, it was incumbent for the respondents to have had impleaded the recorded owner i.e. Province of Balochistan as defendant in the suits by keeping in view the requirements of section 79, C.P.C. The claim of the respondents for non compliance of the provisions of section 79, C.P.C. and so does required under Article 174 of the Constitution of Islamic Republic of Pakistan read with Order XXVII, C.P.C. was not entertainable; the departure to the legal requirements as above mentioned has materially affected the proceedings and the impugned decrees whereas; the concerned party also stands condemned unheard despite being the necessary party to the suits. Following the dictum laid down by the Honourable Supreme Court, reported in PLD 1993 SC 147; the suits instituted by the respondents in view of the reasons above mentioned materially affected the proceedings and consequently the impugned decrees, are not sustainable. In such view of the matter it would not be appropriate to dilate upon the other contentions advanced on behalf of the parties." The counsel for the petitioners when confronted with the above petition also could not advance legal justification and was unable to meet the legality in said regard. All the above factors support the observations of Majlis-e-Shoora and the order of remand in the above circumstances is found to be unexceptional, therefore, I am unable to detect any illegality, irregularity committed by the learned Majlis-e-Shoora by remand of the suit for its disposal afresh in accordance with law. This would not only settle the dispute between all the necessary parties but would also curtail multiplicity of litigation. The petition thus having no merits is dismissed with no orders as to cost. H.B.T./33/Q Petition dismissed.